The opinion
STATE OF MAINE SUPERIOR COURT
AROOSTO()K, SS DOC. NO. HOUDC-CV 2012-90
ERlC D. BROWN,SR )
PLAINTIFF )
vs. ) ORDER AND
) DECISION
DEBORAII WARDWELi, )
DEFENDANT )
On December 21, 2012 Eric D. Brown, Sr., Plaintiff herein (hereafter referred to as Eric)
filed a complaint against the Defendant, Deborah Wardwell (hereafter refe1Ted to as
Deborah) asserting the following claims:
Count I-Action to Quiet Title
Count II-Declaratory Judgment Action
Count Ill-Improvident Transfer of Title
Count (V-Conversion
Count V-Waste
Count VI-Refonnation of Deed
Trial on the matter was held July 13, 2016. Testimony was received from Eric, Deborah,
Attorney Daniel Nelson and Anthony Bowers, and in addition deposition testimony of
Jonathan Borkum, PhD.( Exhibit 5)
FTNDlNGS OF FACT 1
Eric is a 73 year old man with a complicated medical history related to a serious work
related back injury. Over the course of several years he had multiple back surgeries, but
remains to date in chronic pain, requiring medication. Eric was previously married and
had five children, but the marriage ended in divorce in 2000. I )is children were not active
participants in his life or health care in the years immediately prior to and including the
I
Debra Wardwell, Attorney Nelson and Anthony Bowers were all found to be credible
witnesses, with consistent versions of facts and it is their testimony along with the
deposition testimony of Dr. Borkum and medical record of Dr. Thomas that wns largely
relied upon to make these findings of facts. Eric Brown's testimony was found less
reliable. Although his time line of events is generally consistent with that of the other
witnesses, his testimony to specific details of events was often found unsupported or
inconsistent, and otherwise unreliable.
JUDGtv1E~J.r f~NTERL:D
DP,TE::_ }Q/.~/_J_{p··-----·--·--·
time of events which are the subject of' this case . Through those years he resided in
Hammond Plantation, Maine.
In 2007, Eric was introduced to Deborah. They became friends and eventually began
dating. Deborah would spend some evenings at Eric's home and they would sleep
together. They developed a loving and caring relalionship.
About six to eight months after they started dating, Eric proposed to Deborah and gave
her an engagement ring which she accepted. Deborah then moved in with Eric at his
Hanunond Plantation home.
In 2008, Eric's grandson came to live with them. The grandson's presence resulted in
added tension and created distance between Eric and Deborah. Eric suggested to Deborah
she move out of his home, which she did. She also returned the engagement ring. After
moving out Eric and Deborah remained friendly , but with the passage of time over the
next year they had little contact.
At Christmas in 2009, Deborah sent Eric a card. This led Eric and Deborah to resume
contact with one another in early 2010 and soon their relationship re-kindled. Deborah
again began spending overnights at Eric's.
Through this time, Eric's relationship with his grandson soured and the grandson left the
area. Up until the time he left, the grandson had also served as Eric's "caretaker", for
which services he was paid by Eric's workers compensation insurer, One Beacon.
Upon departure of the grandson, Deborah began staying more frequently and eventually
moved back into Eric's home. At Eric's suggestion she also assumed the role as
"caretakerH and, as had the grandson, was paid for those services by One Beacon. When
Deborah became the caretaker, Eric advised Deborah to set aside a portion of her
payments for income taxes, which she did.
Upon moving back into Eric's home, Eric also reh.1mcd to Deborah the engagement ring
he had previously given her in 2007.
On July 5, 2011, Eric signed n Will and a Power ot Attorney prepared by his attorne ,
Patrick Hunt. The July 511 '. 2011 Will bequeathed Eric's entire estate to Deborah, and
specifically made no provisions for any of his children. The July 51h, 2011 Power of
Attorney wus a general power of attorney and named Deborah as the agent. The powers
of the agent enumerated in the document included the authority to make gifts to the agent.
There is no evidence or findings of any undue influence heing exercised by De orah (or
anyone else) upon Eric in the preparation or execution of either the Jul y 5111 20 l I Will or
Power of Attorney.
At Christmas in 2011, Eric gave Deborah a second ring, as a gift.
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In early 2012, as Deborah prepared her income tax returns, she discovered she owed
more in taxes than anticipated or set-aside. Upset, she discussed the issue with Eric. It
was agreed Eric would pay the taxes owed to the IRS, $264 I, and that Deborah would
give to Eric the monies she had previously set-aside for her taxes, approximately $800.
Eric authorized Deborah lo pay her IRS tax bill from his checking account and to sign his
name to the check. At the same time Eric instructed Deborah to start setting aside more
money for her taxes, as he would not pay her taxes in the future.
Sometime in early 2012, Eric also added Deborah as a signatory on his checking account
at Savings Bank of Maine and on his savings account at First Citizens Bartl<.
The medical evidence establishes that in early 2012, Eric's health and cognitive abilities
were in decline. Eric was in constant pain, on several medications and increasingly
depressed. His memory declined as did his functionability. He was referred to Dr.
Borkmn, PhD. for counseling and was also referred to Dr. Thomas for a
neurophyschological evaluation. That evaluation was conducted in May, 2012.
The evaluation by Dr. Thomas establishes that in early 2012 Eric had significant deficits
in his cognitive function, including memory, executive function and attention. The net
effect was a decline in his general intelligence compared to his pre-morbid level. Dr.
Thomas indicated in his evaluation that Eric could perform simple concepts, could make
infonned choices with simple tasks and that he demonstrated a fair appreciation for his
cognitive weaknesses. It is also noted that at the time of the evaluation by Dr. Thomas
and during the period of counseling with Dr. Borkum, Eric was still able to operate a
motor vehicle independently. Although his activity level declined in 2012, he still
performed a number of chores and activities independently including those that required
the operation or his vehicle and attending meetings. Dr. Thomas' evaluation also reveals
Eric was able to provide significant details regarding his prior history and current
condition.
Neither Dr. Thomas nor Dr. Borkum directly states or opines that Eric was incompetent
in 2012 or at any other time. 2 ln fact, when addressing Eric and Deborah's relationshjp,
Dr. Thomas wrote .. ii is unclear what her legal status would be should he become
incapacitated. This implies he was not incapacitated at that time. Also, Dr. Borkum's
testimony suggests that in the Spring of 20 l 2, early in his counseling treatment, Eric
showed signs of improvement likely attributable to changes in medication and improved
depression.
2
Dr. Bork um 's testimony docs raise question whether Eric could properly understand the
legal implications hy his signing a deed transferring his prope11y; but the Court gives
greater weight to the evaluation by Dr. Thomas in May 2012 as it is more temporally
relevant. The Court also gives great weight to the testimony of Attorney Nelson who met
with Eric several times to discuss his real estate and its transfer and who also took Eric's
acknowledgment at the time he executed the deed.
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Both Eric and Deborah testified that at the conclusion of the consultation with Dr.
Thomas in May, 2012, it was suggested Eric get his personal affairs in order. Upon
reviewing Dr. Thomas' report, it is not specifically written that he suggested to Eric lo
gel his aj.fi1irs in order, but Dr. Thomas did write that " ..there may be benefit in assessing
future need for guardianship or conservatorship. These probably are nol necessary at the
present time with Ms. Wardwell's oversight, however there may be issues in the future
and they may be complicated in the absence of a legal partner." Regardless cxaclly what
was said, Dr. Thomas had some discussion with Eric that prompted him to initiate steps
addressing his personal affairs.
At no time since May 2012 to date has a conservator or guardian been applied for or
appointed for Eric, nor is there evidence compelling the need for either.
After his consult with Dr. Thomas, in the Spring of 2012 Eric did in fact take steps
regarding his affairs. Eric and Deborah met with Anthony Bowers, an undertaker and
funeral home operator. :t,..fr, Bowers provided Eric and Deborah with a number of options
for funeral arrangements. Ultimately Eric and Deborah agreed on cremation, and Eric
requested his burial site be in the Veteran's section. Mr. Rowers was paid in cash for both
arrangements. While wrapping up the transaction, Deborah indicated she also wanted a
graveside service, which Eric agreed lo pay. The additional payment was made a few
days later. Mr. Bowers provided no evidence suggestive that Eric was incompetent or did
not understand the arrangements discussed or that he was unduly influenced. In fact, Mr.
Bowers testified Eric seemed to understand the various options being considered.
Eric also met with Max Lynds at F.A. Peabody Insurance, where Eric had various
insurance products including life insurance. Eric met with Mr. Lynds alone, and
eventually cashed out a small portion of his benefits. Mr. Lynd's suggested to Eric he
consult with Attorney Daniel Nelson regarding questions Eric had about any claims his
ex-wife could make on his insurance and real estate.
Eric, Deborah and Attorney Nelson each testified consistently from which it can be found
that Eric met with Attorney Nelson several times. Deborah was not present at any of the
meetings except the last one on June 7, 2012 when she was present to sign the transfer tax
form re]atcd to the deed, but there were no discussions between Deborah and Attorney
Nelson. There is no evidence Deborah participated or exercised any influence of any kind
regarding the matters Eric discussed with Attorney Nelson or the signing of the deed.
In addition to discussing with Attorney Nelson his concerns of claims by his ex-wife on
his life insurance or real estate, Eris testified he also discussed with him his plans for his
real estate. He was concerned about claims by his ex-wife. I le testified at the hearing that
he thought deeding the real estate to Deborah would put it inlo trust and protect it.
Attorney Nelson's testimony was somewhat limited by his invoking attorney-client
privilege, but Attorney Nelson confirmed that he fully explained to Eric the effoct and
operation of the deed, including the transfer to Deborah and a life estate reserved to Eric,
and that they did not discuss conveying the property in trusl. Again, Eric met alone with
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Attorney Nelson several times. Attorney Nelson saw no reasons not to take Eric's
acknowledgment.
On June 7, 20[2 Eric executed the deed prepared by Attorney Nelson conveying Eric's
r~1l estate in HM1mond Plantation to Deborah, reserving himself a life estate. Attorney
Nelson took Eric· s acknowledgement, and testified he felt Eric was competent to execute
the deed and would not have proceeded otherwise. The evidence establishes that Attorney
Nelson was solely Eric's attorney, and he had no attorney-client relationship with
Deborah. The Court is satisfied, and so find ·, that Eric nppreciatcd the significance and
implications of his execution of the deed to his Hammond Plantation property based upon
Attorney Nelson's testimony of their several meetings to discuss the issue and his
observations at the time he acknowledged Eric signing the deed .
- On June 30, 2012, Deborah withdrew $ I 000 from Eric's savings account. There is
evidence this money was withdrawn by agreement, and a portion of it was intended for
Deborah's grandchildren. But when Eric asked Deborah to leave his home a short time
later, the money was left in his desk.
In early August 2012, Deborah's mother died . As part of her arrangements, Deborah
planned a family gathering at Eric's home to follow the funeral. This apparently upset
Eric. Eric told Deborah she needed to find someplace else to live. Deborah moved out on
August 4, 2012. This lawsuit was commenced in December, 2012.
CONCLUSIONS OF LAW
COUNTl
Count I was voluntarily dismissed by Eric. Hence, on Count I, judgment is entered for the
defondant.
COUNT JI
In Count II, Eric seeks declaratory relief, specifically that the Court declare the deed from
Eric to Deborah is void. Mental incapacity of a grantor alone is sufficient lo rescind or
void a deed. ~ragdon v. Drew, 658 A.2d 666, 668 (Me. 1995). But, in the cvenl or one
who has not been deemed legally incompetent, the law generally presumes mental
soundness and the burden lo show incompetency rests on the party seeking to void the
transaction. _lei_, ln Drew . nrng_don, the Law Court also indicated it agreed with
Comment c to Section 15 of the Restatement(Second) of Contracts ( 1981 ), which
provides helpt\Jl guidance when making such an analysis. Comment c states:
Where there has been no previous ac(judication ofincompetency, the burden of
proofis on the party asserting incompetency. Proof ofirrational or 11ninfe/ligent
behavior is essential,· almost any conduct ofthe person may be relevant. as may lay and
expert opinions and prior and subsequent mijudications v_f'incompetency. Age, bodily
infirmity or disease, use ofali:ohol or drugs, and illiteracy may bolster other evidence cf
incompetency. Other facts have significance when there is mental illness or defect but
some understandinx: absence of independent advice, co,ifidential orfiducia1y
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relationship, undue i11fluence, .fi·aud, or secrecy; in such cases the critical fact often is the
normal pattern ofsimilar transactions, and particularly inadeqll(1cy ,fconsideration. Id.
In this case there has been no prior or subsequent adjudication of legal incompetence
regarding Eric. Eric is 73 years old and not in great health, historically of above average
intelligence but in decline in 2012, and strong willed. There is expert opinioil suggestive
of incompetence by Dr. Borkum. But Dr. Thomas, whose evaluation of Eric the Court
finds to be more persuasive, does not indicate incompetency. Dr. Thomas docs make
diagnoses regarding mental illness and cognitive decline but at the same time makes
record of the numerous things Eric could do independently, all indicative of competence.
There is also significant lay testimony of competence by Mr. Bowers and Attorney
Nelson, based on first hand interactions regarding mildly involved matters. The evidence
also includes descriptions of interactions Eric had with his insurance agent at the
timeframe relevant to It.is claims. There is absolutely no evidence of undue influence,
fraud or secrecy. To the contrary, the evidence shows after his appointment with Dr.
Thomas, Eric unde11ook by himself to get his affairs in order. Ile met with his insurance
agent, the funeral home operator and his attorney. Eric had a number of consultations
with his attorney, attended only by himself. Attorney Nelson provides evidence of Eric
making infonned decisions regarding the transfer of his property to Deborah and capacity
to execute the deed . The totality of these facts show an individual who was capable of
making independent decisions and implementing them independently. And given his age,
health and family circumstances, his decisions were neither irrational nor highly unusual.
The burden of proof to establish incompetence was on Eric. The Court finds he has failed
to meet his burden. The request for declaratory relief is denied and judgment is entered
for the defendant on Count 11 .
COUNT lll
In Count IlI, Eric seeks to rescind the conveyance and transfer to Deborah pursuant to the
Improvident Transfers of Title Act, 33 M.R.S.A. Section l 021, el. seq. Section I 022
states: In any tram.fer of real estate or 11u1ior transjer ofpersonal property or moneyjor
fess than full consideration ..... by an elderly person who is dependent on others to a
person with whom the elderly dependent person has a conjidential orjiducia,y
relationship, it is presumed that the transfer or e.tecution was the result of1111d11e
influence, unless the elderly dependent person was represented in the trami:fer .. by
independent counsel. When the elderly dependent person s11ccess:fi1lly raises the
presumption <f undue inJluence by a preponderance ,?{ the evidence and ·when the
transferee ...fi.1ils to re hut the presumptfon, the elderly dependent person is entitled to
avoid the transfer..
Section 1023 further provides that when a transfer or property by an elderly dependent
person was the result of undue influence, the court shall grant appropriate relief to avoid
the transfer, including rescission or refom1ation of a deed.
Eric's transfer to Deborah of his real estate was a transfer by an elderly person to one
who he was at least partially dependent upon, and the transfer was clearly for less than
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full consideration. But the Court also finds that Eric was represented by independent
cot1nsel when he made this transfer. Attorney Nelson represented only Eric. He did nol
represent Deborah in any way. So Eric is not entitled to the presumption of undue
influence pursuant to Section I022.
Nor is there evidence of undue influence being exercised hy Deborah upon Eric to make
the transfer. As previously discussed, the evidence indicates Eric independently made his
decision lo transfer his prope1ty, and implemented his decisions independently. Without
the benefit of the presumption, Eric has failed to meet his burden of proof to establish the
transfer was made pursuant lo undue influence. On Count III, judgment is entered for the
defendant.
COUNT IV
In Count IV, Ede seeks relief pursuant to a claim of conversion to have Deborah ordered
to return to him $3641, which amount represents the $2641 Deborah took by way of
wl'iting a check on Eric's accounts to pay her laxes and $1000 she withdrew from the
bank. A claim of conversion requires proof of the taking of property by a wrongful act.
This claim foils for a number of reasons. At trial, Eric essentially withdrew this claim and
indicated he did not want the money returned. But the Court will also address the merits.
At the time Deborah either wrote the check for her laxes, or withdrew money from Eric's
m.:count, she was the appointed agent on Eric's Power of Attorney which had been
previously executed on July 5, 2011. The Power of Attorney included the right and
authority lo make gifts to herself, as Agent.
In addition, the Court finds that when each of these transfers were made, Eric was aware
and in agreement. As for her taxes, Eric had earlier told Deborah to set money aside from
her paycheck lo pay het' taxes. Deborah did so, hut found she had not set aside enough.
She discussed this with Eric, and Eric consented Lo helping her with the laxes this time
but warned her to slat1 setting aside more money as he would not do so again. As for the
$1000 withdrnwn from Eric's account, the Court again finds Eric was aware and
consented to this withdrawal. and also finds c.;redible Deborah's testimony she left the
money in Eric's desk when he told her to leave his home in Augusl 2012.
In summary, Eric has failed his burden of proof to show a wrongful taking by Deborah.
On Count IV, judgment is entered for the def'endant.
COU1\TV
Count V was voluntarily dismissed by Eric. 1-lence, on Count V, judgment is entered for
the defendant.
COUNT VI
ln Count Vl, Eric seeks to reform the deed from Eric to Deborah dated June 7, 2012 on
the basis that there was a mistake of fact. For the reasons previously explained the Court
7
(
does nol find any mistake of fact. Eric independently made decisions to put some of his
affairs in order, including making funeral arrangements, speaking with his insurance
agent and consulting with Attorney Nelson about his real estate. And he independently
implemented the decisions he made. By all accounts, bis transfer of his property to
Deborah, reserving himself a life estate, was consistent with his discussions with
Attorney Nelson. There is no evidence of a mistake. Accordingly, the Court denies Eric's
prayer for reformation. On Count VI, judgment is entered for the defendant.
Dated: Octobc~
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